Oireachtas Committee calls for integration not segregation in schools, as proposed by Atheist Ireland

The Oireachtas joint Committee on Education has concluded that multiple patronage and ethos as a basis for policy can lead to segregation and inequality in the education system, and that the objectives of admission policy should be equality and integration.

This reflects the arguments made by Atheist Ireland to the Committee, both in our written submission and in the presentation by Jane Donnelly to the Committee hearings last December, about the new Bill on admission to schools that the Committee was considering.

This is a significant and strongly-worded conclusion, that contrasts the current segregation and inequality with the objective of equality and integration. This conclusion goes to the heart of the religious discrimination in the Irish education system. The Minister should take it seriously, and act on it.

Access to a local school without religious discrimination is a human right, and Ireland is in breach of its international obligations by permitting this religious discrimination. This religious discrimination disrespects the philosophical convictions of secular parents and their children and treats them as second class citizens.

The Committee also concluded that concerns were raised by stakeholders about the religious ethos exemption provided for in Section 7(3)(c) of the Equal Status Act, 2000.

Atheist Ireland had told the Committee that this provision breaches provisions of Bunreacht na hÉireann, and Ireland‘s obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.

Atheist Ireland had argued that, if the proposed Amendment permitted exemptions on the grounds of race or disability, everyone would instinctively recognise that this was discrimination and could not possibly meet the stated objective of ensuring that schools’ enrolment policies and procedure are non-discriminatory and are applied fairly in respect of all applicants. Unfortunately the State believes that discrimination on religious grounds is somehow acceptable while recognising that discrimination on the other recognised grounds is unacceptable.

The Committee noted that Section 7(3)(c) has not been challenged in the Courts, and concluded that there is a potential tension between Articles 42 (Education) and 44 (Religion) of Bunreacht na hÉireann, and this poses a particular difficulty when legislating in this policy area.

The report makes eight conclusions, the first two of which are relevant to the issues raised by Atheist Ireland.

Conclusion 1

Notwithstanding

the provision by Vocational Educational Committees over the years of multi-denominational education at post-primary level, and

the growth in the provision of such education by the Educate Together patronage body, and at primary level in more recent times by the Education and Training Boards

several stakeholders including the Ombudsman for Children noted the lack of diversity of school types available in Ireland.

In that context, concerns were raised by stakeholders in respect of Head 3 (iii)(II), which reaffirms the religious ethos exemption provided for in Section 7(3)(c) of the Equal Status Act, 2000. Some stakeholders claimed that this provision may be in breach of provisions of Bunreacht na hÉireann, and Ireland‘s obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child. On the other hand, others claim that Bunreacht na hÉireann, in effect, protects the position of denomination-based education.

Section 7(3)(c) has not been challenged in the Courts. There is a potential tension between Articles 42 (Education) and 44 (Religion) of Bunreacht na hÉireann, and this poses a particular difficulty when legislating in this policy area.

Conclusion 2

Multiple patronage and ethos as a basis for policy can lead to segregation and inequality in the education system. The objectives of admission policy should be equality and integration.

4.1 Admission policies – Affirmation that the school will not discriminate

4.1.1 What the Bill proposes to do

Under Head 3 of the General Scheme, a school must include a statement in its admission policy that it will not discriminate against applicants on any of the nine discriminatory grounds set out in equality legislation.

4.1.2 Response from Stakeholders

The stated aim of Head 3, to reinforce the principle of inclusiveness and accessibility, was welcomed by many stakeholders. However, a number of concerns were raised in relation to this Head.

4.1.3 Religious Ethos

A 2012 report by the Forum on Patronage and Pluralism in the Primary Sector stated that 96% of primary schools in Ireland are under denominational patronage and claims that this is unique among developed countries.

The General Scheme of the Bill reaffirms the exception provided to denominational schools under Section 7 of The Equal Status Act 2000. In areas where schools are oversubscribed, Section 7 of the Equal Status Act 2000 may, potentially, result in local children who are not of a particular denomination being unable to access a school in
their area.

The Teachers‘ Union of Ireland (TUI) write that the current proposals “…continue to give schools considerable scope to refuse admission or exclude on the basis of characteristic spirit or ethos..” and considers that the Equal Status Act 2000 may need to be amended. The Irish National Teachers Organisation (INTO), presenting to the Committee on 4th December 2013, stated its opposition to the exception given to denominational schools under Section 7 of The Equal Status Act 2000.

Atheist Ireland contend that it is unacceptable for a school to be allowed to give preference to some religious faiths over others, in order to “maintain the ethos of the school” and maintains that Ireland is in breach of its international human rights obligations by permitting what it describes as religious discrimination.

Speaking to the Committee on 11th December 2013, Ms. Jane Donnelly of Atheist Ireland said that:

“The State allows my only local State-funded school to tell me it will admit all Catholic pupils first and that it might then get around to my children if there are extra places available and only if we do not undermine its ethos.”

Ms. Donnelly also refers to Article 42.3.1 of the Constitution which states:

“The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.”

Ms. Donnelly argues that the State ignores this Article inasmuch as secular parents have, in her view, no choice but to send their children to schools with a religious ethos.

Ms. Eukaria O‘Grady, a private citizen, presented to the Committee on 15th January 2014. Ms. O‘Grady argued that the requirement for parents to provide proof of membership of a certain denomination in order to access State-funded schools is contrary to constitutional and human rights.

Ms. O‘Grady refers to the European Convention on Human Rights articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion) and 14 (Prohibition of discrimination) which, she argues, state that people are not o bliged to divulge this type of information.

In relation to State-funding of primary schools, the Department of Education and Skills explains that:

“The state pays the bulk of the building and running costs of state-funded primary schools, but a local contribution is made towards their running costs. Teachers‘ salaries are paid by the Department of Education and Skills”

Historically, however, schools were built by the Patron body and so remain in their ownership – this has changed in relation to schools built since 1999.

Mr. John Suttle, author of the paper entitled Illegal Religious Discrimination in National Schools in Ireland, argues that religious discrimination in relation to admissions to schools is banned by Section 7(2) of The Equal Status Act 2000 and that the exception provided in Section 7(3)(c) does not apply to national schools because it is limited by Article 44.2.4 of the Constitution.

Article 44.2.4 of the Constitution states that :

“Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.”

Mr. Suttle notes however that there has never been a direct court judgment or a Government report looking specifically at religious discrimination in admission policies. Mr. Suttle spoke to the Committee on 15th January 2014 and urged that:

“all schools receiving any support from the State must abide by the two pillars of the national school system, which are (1) all religious denominations together in one school and (2) with separate religious instruction.”

The Ombudsman for Children, Ms. Emily Logan in her submission to the Committee refers to the United Nations Convention on the Rights of the Child (UNCRC). Article 2 states that parties must ensure that children are not discriminated against on a number of grounds including religion. Ms. Logan also cites a 2006 review of Ireland‘s implementation of the UNCRC by the UN Committee on the Rights of the Child, which recommended that the State amend the existing legislative framework to eliminate what it judged to be discrimination in school admissions.

The Ombudsman for Children also cites a 2011 review by the UN Human Rights Council which recommended that Ireland eliminate religious discrimination in access to education. The Ombudsman for Children‘s submission (s 2.19) notes that the State did not accept this recommendation but did indicate that issues of access were being considered as part of its review of the school admission system.

The Ombudsman also draws attention to the committee charged with monitoring the implementation of the International Covenant on Civil and Political Rights (ICCPR) which recommended that the State increase its efforts to provide non-denominational primary education in all regions of the State.

Likewise Ireland‘s 2011 report by a UN Committee under the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) expressed concern over the lack of diversity of school types in Ireland and recommended the establishment of more non-denominational or multi-denominational schools as well as amending the existing legislation that inhibits students from being admitted into schools because of denomination.

Both Atheist Ireland and the Ombudsman for Children make reference to Article 2 of Protocol 1 of the European Convention on Human Rights which states that:

“No person shall be denied the right to education…the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.”

The Ombudsman for Children argues that the proposed legislation offers an opportunity to discuss the relationship between the State‘s two principles, i.e. (i) that it will provide equal access to education for all children and (ii) that children will be given priority in admission to schools of their own denomination.

The Ombudsman recommends that:

“Section 7 of the Equal Status Act 2000 should be amended to provide that no child should in general be given preferential access to publicly- funded education on the basis of their religion, subject to a derogation that may be granted to a denominational school where the operation of this principle gives rise to a situation in which a school‘s student body may no longer reflect the school‘s denominational character.”

Some religious groups, however, have defended the right to provide denomination-based education and in some instances to prioritise applicants according to their religious beliefs.

Speaking to the Committee on 15th January 2014, Ms Marie Céline Clegg of the Loreto Education Trust said:

“Accountability is being sought in the proposed legislation respecting arrangements for those who wish to withdraw from religious instruction, as is their constitutional right, but there is no corresponding emphasis on accountability in relation to the rights of those who wish to have religious instruction as an integral part of the curriculum in accordance with the characteristic spirit of the school as articulated by the patron in the exercise of its statutory responsibility. The balancing of rights is an important governance and management function in schools as it is for the Government. Article 26.3 of the Universal Declaration of Human Rights states ―Parents have a prior right to choose the kind of education that shall be given to their children‖. Protocol 1, Article 2, requires the State to respect the right of parents to ensure such education and teaching as is in conformity with their own religious and philosophical convictions. The UN International Covenant on Economic, Social and Cultural Rights unambiguously upholds this right.”

Referring to Regulation 13 (ii), CPSMA write that:

“CPSMA is concerned that the requirement to explicitly acknowledge a child‘s constitutional right not to receive a religious instruction is indicative of a move towards an attempted secularization of denominational schools.”

CPSMA express concern that the proposals:

“… seek to create a generic form of Primary School that is denomination neutral and essentially amounts to an interference in the constitutional right of a religion to manage its own affairs. CPSMA regards this as an alarming development, not just for Catholic but, for all Faith based schools.”

In the COIBOE‘S submission to the Committee they argue that:

“The COIBOE considers the right of religious (minority) groups to prioritise entry to schools on religious grounds as essential to the maintaining of the ethos of schools under religious patronage.”

Dr. Ken Fennelly of COIBOE speaking to the Committee on 4th December 2013 regarding Head 4, and the proposal to insert a new Section 33 said:

“At this point, the proposals move from the making of regulations to prescribe the format of school admissions policies, to prescribing the content of school admissions policies… Clearly in a school which is under the patronage of a religious body, the appropriateness of the Minister seeking such powers, even if they are only to be used as a last resort, is open to question in our view. The committee might wish to consider how this proposal sits with Article 44 of the Constitution which states that religious bodies have the right to manage their own affairs.”

The Constitution specifically sets out the State‘s duties in respect of education in Article 42. In addition, the provisions of Article 44 which govern religion and religious freedom, provide among other things for:

public funding of denominational schools;

the right of religious denominations to manage their own affairs; and

the right of pupils to attend a school without attending religious instruction in that school.

Professor Gerry Whyte has highlighted the potential for tension between the various constitutional protections afforded by Articles 42 and 44 and states that:

“The conflict between these ideologies did not emerge for many years because of the dominant position of the Roman Catholic Church in Irish society.”

For more information see Religion and Education – the Irish Constitution, A paper presented by Professor Whyte at the University of Dublin/Irish Human Rights Commission Conference on Religion and Education: A Human Rights Perspective, held on the 27th of November 2010.

4.3 Regulating school admissions

4.3.1 What the General Scheme proposes to do

Section 33(g) of the Education Act, 1998 allows the Minister to make regulations relating to the admission of students to schools. However this power is general and the Act does not set out explicitly the extent or scope of such regulations. To date this power has not been exercised in respect of enrolment.

the selection criteria to be applied where a school is oversubscribed;

a declaration that the school will not charge enrolment fees;

the position of the school in relation to upholding the constitutional rights of students not to attend religious instruction; and

the arrangements by which an applicant may appeal against a decision to refuse admission, among other things.

4.3.2 Response from Stakeholders

The Ombudsman for Children welcomes that the provisions of this Head will mean that schools will have to provide an offer of enrolment where places are available and states that this will be a “substantial advance‖ on the current framework for admission to schools. “

However, some stakeholders raised the following issues in relation to this Head.

4.3.5 Withdrawal from Religious Instruction

Many stakeholders highlighted their concerns around the issue of religious instruction, arguing that at present this constitutional right is a duty owed by the State. NABMSE write that it would seem the State is attempting to pass its obligations on to schools.

The Church of Ireland Board of Education (COI BOE) pointed out that:

“…the proposed wording is confused in its allocation of responsibilities for upholding this State granted right.”

With regard to the arrangements for upholding the constitutional right of students who
do not wish to attend religious instruction in schools, the COIBOE representatives noted that the current situation is that schools facilitate this where possible and in practice it is the parent who withdraws their child from class time and schools facilitate this on the basis of practicality and within the scope of available resources on the basis of goodwill.

Stakeholders highlighted potential difficulties regarding resources on this issue as any student who leaves religious instruction must be supervised. For instance, the COIBOE write that:

“Should this now become an obligation on schools it will obviously have to be resourced.”

NABMSE also believe that it will be particularly difficult for smaller schools to allocate staff resources to supervision duties should any parent choose to withdraw their child from religious instruction. The Association of Community and Comprehensive Schools (ACCS) also highlight the difficulty that any withdrawal by parents of students from religious instruction would present in terms of resources. Respond ing to this provision, the Loreto Education Trust Board expressed concern that:

“The difficulties posed by having to put in place clearly articulated arrangements to cater for those who wish to withdraw, as is their right, has the potential to push Religious Education to the periphery of the school curriculum.”

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